Constitutional crisis brewing over top judicial appointments?


PETALING JAYA: Lawyer Muhammad Rafique Rashid Ali has joined the chorus of voices saying it is constitutionally wrong to extend the terms of the chief justice and the Court of Appeal president after they have reached the mandatory retirement age.

Rafique said additional judges in the Federal Court could not hold any of the four administrative posts in the judiciary.

Rafique said Article 122 (1) of the Federal Constitution provided three different categories of judges who would constitute the Federal Court.

First, he said, were judges who held positions in the judicial hierarchy, the Chief Justice, Court of Appeal President, Chief Judge of Malaya and the Chief Judge of Sabah and Sarawak.

The second category are 11 Federal Court judges while the third are ” additional judges “who are appointed under Article 122( 1A).

“Surely, from these specific categorisation provided, those holding administrative posts cannot double up as additional judges,” he said.

Rafique said this in response to Friday’s media statement that the King on the advice of the prime minister, after consulting the Conference of Rulers in May, had appointed Raus Sharif as an additional judge for three years from Aug 4 and that he would remain as chief justice.

Similarly, a statement from the Prime Minister’s Office (PMO) stated that Zulkefli Ahmad Makinudin had been appointed additional judge for two years from Sept 28, and that he would remain as Court of Appeal President.

It said the King had earlier accepted a March 30 proposal by outgoing chief justice Arifin Zakaria to appoint both as additional judges after both reached the age of 66 years and six months.

Raus was scheduled to retire on Aug 3 while Zulkefli was to retire on Sept 27.

Article 125 states Federal Court judges can only hold office up to the maximum age of 66 years and six months of age.

However, Article 121 (1A) allows the King, on the advice of the chief justice, to appoint additional judges for a specific purpose or time from any person who has held high judicial office in Malaysia.

Rafique said a plain reading of the phrase “who has held high judicial office in Malaysia” would mean that the said additional judge must have retired and could not hold any administrative posts.

He said the PMO’s statement that the tenure of the current chief justice and Court of Appeal President, once over, would be extended were clearly against the simple wordings of Article 122(1) on the composition of the the Federal Court.

On Sunday, senior lawyer Jagjit Singh said Raus and Zulkefli’s appointments were valid as the extension of their current tenures would take effect after their retirement.

“It does not matter if one is appointed a day after retirement or six months later,” he said.

Umno lawyer Muhammad Shafee Abdullah had earlier stated that the appointments of Raus and Zulkefli as additional judges were valid as the appointments would take effect after their retirement.

Rafique said the King could rely on Article 130 to obtain a legal opinion from the Federal Court since there now emerged conflicting views.

Lawyer and Bukit Gelugor MP Ramkarpal Singh had earlier said Arifin’s recommendation was unconstitutional as the two men were still on the bench.

Ramkarpal said the appointment of former Federal Court judge Jeffrey Tan Kok Hwa as additional judge in July last year was valid as he had returned to the bench seven months after retirement.

Former chief justice Abdul Hamid Mohamad had publicly advised that a further extension to Raus’ tenure would be unconstitutional and would cause uncertainty in the judiciary.

Similar opinions were expressed by former Federal Court judge Gopal Sri Ram, former de facto law minister Zaid Ibrahim and current Malaysian Bar president George Varughese.